Many potential clients who contact the Law Offices of Michael Devlin have never been involved in a lawsuit and are not sure of how the litigation process works. Some potential clients have been involved in some other type of lawsuit and use that as a point of reference. Others still have had friends or family involved in a lemon law lawsuit before and base their expectations on what occurred in that case. It is important for every consumer to understand that every case is different and should not be compared to other disputes; even another lemon law lawsuit. In fact, manufacturers themselves use the tried and true script of a “case-by-case” basis in defending against consumers’ requests for repurchases.
One of the most frequently asked questions pertains to how long the process will take. Unfortunately, because every case is different there is no way of knowing. Many different variables play a role in the length of the process including where the case is venued, what are the defects in the vehicle, which manufacturer is involved, who the attorney is representing the manufacturer, how busy opposing counsel is with other matters not related to your case, and how the assigned judge handles the caseload in his or her courtroom. The reality is that there are too many factors in play that affect how long a particular case will take.
The Law Offices of Michael Devlin settle many cases in just a matter of a couple of months. But there are many cases that are defended tenaciously for upwards of a year or more. While the goal is always to reach a resolution in the form of settlement as soon as possible, there is no guarantee that the defendant in your case will wish to discuss settlement sooner rather than later. In fact, one of the defendant manufacturer’s most effective defense strategies is to delay a case in efforts to wear consumers down.
While other attorneys in the sign-up process may try to “guarantee” that the case will only last a matter of a couple of months, the truth is such promises are made in efforts to have consumers sign up as clients. The Law Offices of Michael Devlin make no such promises to potential clients and always advise potentials that they should be wary of any other attorney or law firm that promises a quick resolution.
What is the process?
The lawsuit will begin with the filing of a formal Complaint in your local county’s superior court. The defendant manufacturer is then served with the Complaint and Summons informing them of the lawsuit that has been filed. From the date of service of the Complaint, the defendant will then have a month to respond to the Complaint. In almost every case, the defendant will await the very last day before filing its formal response. Thus, the first month of litigation is very quiet as the defendant’s response is awaited.
Oftentimes, the manufacturer will file a boilerplate Answer that is a denial of all liability; no matter how strong the consumer’s case. This is done in order to preserve defenses later on. Simply because a defendant denies all liability does not mean they will defend your case all the way to trial. It should be expected for the defendant to deny all liability.
Sometimes, the manufacturer will challenge the pleadings in efforts to have all or part of the case thrown out and dismissed by the court before the case ever really begins. When defendants engage in this tactic it is really done as a “hail-mary” and the practical effect is to simply delay things. When a defendant chooses to challenge the pleadings rather than simply file an Answer, the court will set a hearing on the issue which can be months down the road.
Regardless of whether the pleadings are challenged or an Answer is filed, eventually the court will have a status conference in which a trial date will be set. In some venues in California, trials can be set up to two years down the road. It is important to understand that simply because a trial date is set does not mean the case will go to trial. Statistically, approximately 98% of all cases – not just lemon law cases – settle prior to a trial. Even so, the judge must manage his or her own docket of assigned cases and must set trial dates to move cases along.
Unlike in movies or television shows, if/when a case does go to trial there are not dramatic surprise “gotcha” moments. This is because by the time a case goes to trial each side is entitled to know the other side’s evidence. Evidence is gathered during what is called the discovery process. Discovery is the means by which each side obtains information from the other and can take the form of oral depositions, requests for documents, or simply requests for responses to particular questions.
Discovery begins shortly after the service of the Complaint and will be ongoing throughout the litigation. It is through this process that the basis of the defendant’s defense (or a clear indication that its defense is baseless) is gathered. Defendants will attempt to delay this process by not readily providing information which oftentimes causes the need for court intervention in the forms of various motions advising the court of improper efforts to prevent disclosing information.
The Law Offices of Michael Devlin will constantly be seeking to obtain more and more information and evidence from the defendant on your behalf. By doing so, the pressure is kept on the defendant and an incentive is inherently created for the defendant to discuss settlement sooner rather than later. Faced with having to provide information that they do not wish to provide, defendants will approach the Law Offices of Michael Devlin to discuss settlement. Indeed, for the cases in which the defendant’s defense is essentially baseless, being forced to acknowledge there is no basis for the defense is what will lead to a settlement.
Some manufacturers are more forthcoming with information during discovery. Others stonewall aggressively. When faced with such stonewalling, there are very specific and time-consuming procedural steps related to filing motions that the Law Offices of Michael Devlin must engage in to move things along. In such cases, oftentimes court orders related to compelling information will be the triggering event that causes the defendant to finally discuss settlement.
How Much Involvement is Required of the Client in a Lemon Law Lawsuit?
Most cases will not require clients to do much personally themselves. However, during discovery, just as we are entitled to information from defendants they are entitled to information from our clients. The Law Offices of Michael Devlin will work with clients to answer written discovery requests if it is served by the defendant.
In a minority of cases, the defendant will wish to depose our clients. Depositions are simply formal question and answer sessions with a court reporter creating a written transcript of the proceedings. An attorney associated with the Law Offices of Michael Devlin will help prepare the client and attend the deposition along with them.
Likewise, in a minority of cases, the defendant will wish to conduct a vehicle inspection and the parties will meet at a local dealership for the defendant to evaluate the current condition of the vehicle. The client is not present for this inspection but merely makes the vehicle available at the dealership. Typically these inspections last a handful of hours.
Being required to participate in written discovery, depositions, or making the vehicle available for a vehicle inspection does not happen in every case. But clients should understand that it is a possibility that such measures will be required.
Settlement of Your Case
At some point in the dispute, the defendant will approach the Law Offices of Michael Devlin to discuss settlement. When this will happen is different in every case. Because the defendant is the party in the lawsuit that must put forth settlement funds and pay the other, it is the defendant that has more of a say in how long the case will take. There is no way to force a defendant to make a settlement offer. But by always putting pressure on the defendant during the discovery process, we create incentive for settlement discussions to take place.
While the defendant will have more of a say in how long the case takes, our clients have just as much of a say in the terms of the settlement itself. The Law Offices of Michael Devlin will provide advice on what is a good settlement in a client’s case and the decision will be up to the client to reject or accept any offer.
Sometimes settlement discussions will take place within the first month or two of the case. Other times settlement discussions will take place as trial approaches. In very few cases a trial may be required. Lemon law trials typically last a matter of four or five days. Should a trial be required, Michael Devlin has extensive trial experience and a track record of success at trial.
Regardless of what occurs in your case, the attorneys associated with the Law Offices of Michael Devlin are always available to discuss the status of a client’s case and answer questions during the process.